Citation Nr: 0616110
Decision Date: 06/02/06 Archive Date: 06/13/06
DOCKET NO. 97-05 187 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Wilmington, Delaware
THE ISSUE
Entitlement to service connection for a claimed innocently
acquired psychiatric disorder, to include post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
The veteran and his brother
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The veteran served on active duty from January 1967 to
January 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions issued by the RO.
The Board previously remanded this case back to the RO in
July 2000, February 2002 and September 2003 for additional
development of the record.
FINDINGS OF FACT
1. The veteran is shown to have had combat with the enemy in
connection with his service in the Republic of Vietnam as
manifested by his receipt of the Combat Action Ribbon.
2. The veteran is shown as likely as not to have a current
diagnosis of PTSD with psychosis that had its clinical onset
due to combat experiences during his service in the Republic
of Vietnam.
CONCLUSION OF LAW
By extending the benefit of the doubt to the veteran, his
disability manifested by PTSD with psychosis is due disease
or injury that was incurred in his combat service.
38 U.S.C.A. §§ 1110, 1112, 1113, 1154, 5103, 5103A, 5107
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.304
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107) became law. The regulations implementing the
VCAA provisions have since been published. 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a).
In this case, the Board finds that all relevant facts have
been properly developed in regard to the veteran's claim, and
no further assistance is required in order to comply with
VA's statutory duty to assist him with the development of
facts pertinent to his claim. See 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159.
Specifically, the RO has obtained records of treatment
reported by the veteran and has afforded him comprehensive VA
examinations addressing his claimed disorder. There is no
indication from the record of additional medical treatment
for which the RO has not obtained, or made sufficient efforts
to obtain, corresponding records.
The Board is also satisfied that the RO met VA's duty to
notify the veteran of the evidence necessary to substantiate
his claim in a series of letters issued between March 2002
and September 2004.
By these letters, the RO also notified the veteran of exactly
which portion of that evidence was to be provided by him and
which portion VA would attempt to obtain on his behalf. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In these letters, the veteran was also advised to submit
additional evidence to the RO, and the Board finds that this
instruction is consistent with the requirement of 38 C.F.R.
§ 3.159(b)(1) that VA request that a claimant provide any
evidence in his or her possession that pertains to a claim.
The Board is also aware of the considerations of the United
States Court of Appeals for Veterans Claims (Court) in
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
regarding the need for notification that a disability rating
and an effective date for the award of benefits will be
assigned if service connection is awarded.
However, the absence of such notification is not prejudicial
in this case, involving only a service connection claim.
With service connection cases, no disability rating or
effective date is assigned when service connection is denied.
Also, in cases where service connection is granted, it is the
responsibility of the agency of original jurisdiction (here,
the RO) to address any notice defect with respect to the
rating and effective date elements when effectuating the
award. Id.
Recently, in Mayfield v. Nicholson, No. 05-7157 (Fed. Cir.
April 5, 2006), the United States Court of Appeals for the
Federal Circuit (Federal Circuit) held that a comprehensive
VCAA letter, as opposed to a patchwork of other post-
decisional documents (e.g., Statements or Supplemental
Statements of the Case), was required. The Federal Circuit
further held that such a letter should be sent prior to the
appealed rating decision or, if sent after the rating
decision, before a readjudication of the appeal.
Here, the noted VCAA letters were issued subsequent to the
appealed rating decisions. However, those decisions were
issued several years prior to the enactment of the VCAA.
Moreover, as indicated, the RO has taken all necessary steps
to both notify the veteran of the evidence needed to
substantiate his claim and assist him in developing relevant
evidence.
Accordingly, the Board finds that no prejudice to the veteran
will result from an adjudication of his claim in this Board
decision. Rather, remanding this case back to the RO for
further VCAA development would be an essentially redundant
exercise and would result only in additional delay with no
benefit to the veteran. See Bernard v. Brown, 4 Vet. App.
384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426,
430 (1994) (remands which would only result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran are to be avoided).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time. If chronicity in service
is not established, a showing of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b).
Service connection may also be granted for any disease
diagnosed after discharge when all of the evidence
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Also, certain chronic diseases, including psychoses, may be
presumed to have been incurred during service if manifested
to a compensable degree within one year of separation from
active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38
C.F.R. §§ 3.307, 3.309.
The VA regulations reflect that symptoms attributable to PTSD
are often not manifested in service. Accordingly, service
connection for PTSD requires a current medical diagnosis of
PTSD (presumed to include the adequacy of the PTSD
symptomatology and the sufficiency of a claimed in-service
stressor), credible supporting evidence that the claimed in-
service stressor(s) actually occurred, and medical evidence
of a causal relationship between current symptomatology and
the specific claimed in-service stressor(s). See 38 C.F.R.
§ 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997)
(citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996)).
The evidence necessary to establish the occurrence of a
stressor during service to support a claim for PTSD will vary
depending on whether the veteran was "engaged in combat with
the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993).
If the evidence establishes that the veteran was engaged in
combat with the enemy or was a prisoner of war (POW), and the
claimed stressor is related to combat or POW experiences (in
the absence of clear and convincing evidence to the contrary,
and provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service), the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 38 U.S.C.A.
§ 1154(b); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet.
App. 353, 357-58 (1998).
In this case, the service medical records, including his
January 1970 separation examination report, are negative for
complaints or findings pertaining to mental health
symptomatology.
The Board does observe, however, that the veteran's DD Form
214 confirms his receipt of the Combat Action Ribbon. As
this commendation signifies participation in combat with the
enemy during service in the Republic of Vietnam, the
veteran's reported stressors are deemed to be corroborated
under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), (f).
The first documented psychiatric treatment was conducted at a
VA facility in January 1974 shortly after service. At this
time, an impression of schizophrenia, undifferentiated type,
was rendered. The veteran was subsequently hospitalized at a
private facility in December 1975 for schizophrenia, paranoid
type, during which time he reported having become
increasingly "nervous" for the past three years.
In a psychosocial history report prepared in December 1977 in
conjunction with a period of hospitalization, it was reported
that the veteran had been "extremely quiet and emotionally
withdrawn" after his return from service. Reportedly, in
1972, he was noted to have changed greatly by his family
members.
Subsequently, the veteran was treated for schizophrenia. A
VA treatment records from July 1995 contains a notation of
"[f]lashbacks of people killed in a Vietnamese village."
In October 1996, the veteran's psychiatrist rendered a
diagnosis of PTSD with psychosis. This diagnosis was
confirmed in a March 1997 treatment note, and, in an April
1998 statement, the psychiatrist stated that "it was the
combat trauma and the PTSD that precipitated the
schizophrenia."
The veteran underwent a VA psychiatric examination in
September 1998, which revealed symptoms including auditory
hallucinations, depression, and being suicidal. The examiner
noted that these symptoms were consistent with chronic
paranoid schizophrenia but did not "fit the picture of
typical" PTSD.
Similarly, a VA psychiatric examination conducted in May 1999
revealed symptoms "very typical of paranoid schizophrenia."
The examiner found that such symptoms as social withdrawal,
nightmares and violent behaviors were as likely to be due to
paranoid schizophrenia as to PTSD. Although the veteran had
"some" PTSD-type symptoms, they were found not to be
sufficient to qualify for a PTSD diagnosis.
In June 2003, the veteran's VA psychiatrist reviewed his
claims file for the purposes of a VA medical opinion. In
this opinion, the psychiatrist noted that he had treated the
veteran "over a number of years" and that a diagnosis of
schizophrenia had been rendered.
At the same time, the psychiatrist noted that the veteran had
engaged in combat with the enemy during service and had a
series of in-service stressors, including being wounded by
shrapnel, being bitten by a rat, seeing his comrades killed
and seeing dead people with their limbs blown off.
Given this history, as well as the veteran's intrusive
thoughts, nightmares, and flashbacks, the psychiatrist noted
that the veteran "strongly had evidence of post-traumatic
stress disorder with psychosis" and that he was "probably
not schizophrenic."
The psychiatrist further noted that the veteran's previous
hospitalizations did not give the diagnosis of PTSD its full
weight, as this disorder was not as widely recognized then as
today.
In conclusion, the psychiatrist noted that it would be
difficult to distinguish between PTSD and schizophrenia "in
the sense that the patient indeed did present then signs and
symptoms of what one would call schizophrenia without any
concentration on the diagnostic criteria" for PTSD. The
psychiatrist thus suggested a further examination with a VA
psychologist to clarify these matters.
Consequently, the veteran underwent a further VA examination
in March 2005, with a social worker who reviewed his claims
file. During this examination, the veteran reiterated his
history of stressful events in Vietnam.
The examiner noted symptoms including anxiety, nervousness,
auditory hallucinations, nightmares, flashbacks and intrusive
thoughts. The examiner rendered an Axis I diagnosis of
paranoid schizophrenia by history and rule out PTSD, although
she noted that the veteran "was not having any symptoms
consistent with" PTSD on examination.
The examiner provided no further opinion but did report the
findings of the veteran's VA psychiatrist, as described
hereinabove.
For the purpose of further clarification, the veteran's
claims file was forwarded to a Veterans Health Administration
(VHA) doctor, who reviewed the claims file and provided a
medical opinion in November 2005.
In this opinion, the VHA doctor found that there was "much
documentation" supporting the diagnosis of chronic
schizophrenia, undifferentiated type, dating back to 1974.
The doctor further noted family reports of schizophrenia
dating back to 1972, but not before that time.
The VHA doctor also noted that the veteran reported a number
of symptoms consistent with PTSD, while at the same time
citing an unspecified prior VA examiner who found that these
symptoms were insufficient to support the diagnosis of PTSD,
especially since the many "PTSD-consistent symptoms" could
be caused by the schizophrenia.
In view of these findings, the examiner concluded that it was
not at least as likely as not that the veteran's current
schizophrenia was first clinically present during service or
within the first year thereafter.
As noted, the veteran participated in combat with the enemy
during service and has reported in-service stressors which,
consequently, are deemed corroborated for VA purposes. The
question thus become whether there is sufficient evidence of
record to confirm a diagnosis of PTSD.
In this regard, the Board notes that the veteran has been
diagnosed with PTSD since 1996. His VA psychiatrist has
reiterated this diagnosis on several occasions.
Moreover, the VA psychiatrist provided a detailed explanation
for his diagnosis in a June 2003 opinion, which was based on
a claims file review.
Of particular interest are the VA psychiatrist's notations of
such symptoms of nightmares and flashbacks and his argument
that the hospital treatment providers from the 1970's would
not likely have given full consideration to a PTSD diagnosis,
at that time.
The Board considers this VA psychiatrist's opinion to be of
very substantial probative value. While the Board is aware
that the Court has declined to adapt a "treating physician
rule" under which a treating physician's opinion would
presumptively be given greater weight than that of a VA
examiner or another doctor, the Board may nonetheless weigh
the psychiatrist's long history of treatment of the veteran
as part of analyzing this claim. See Winsett v. West, 11
Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App.
467-471-3 (1993).
Moreover, the March 2005 VA examination comment indicating
that PTSD symptoms were not shown on examination was
contradicted by the notations of nightmares, flashbacks, and
intrusive thoughts. See The American Psychiatric
Association's Diagnostic and Statistical Manual for Mental
Disorders, Fourth Edition (DSM-IV) (indicating that intrusive
thoughts, frightening dreams, and flashbacks are
characteristics of PTSD).
The Board notes that the November 2005 VHA doctor's opinion,
while containing substantial findings regarding
schizophrenia, did not address PTSD other than to indicate
that the veteran appeared to have some PTSD symptoms even
though at least one prior examiner had found that a PTSD
diagnosis was not warranted.
Based on these findings, the Board concludes that it is at
least as likely as not, and that the diagnosis of PTSD with
psychosis is most appropriate.
In view of this, under 38 U.S.C.A. §§ 1154(b) and 5107(b),
the Board concludes that the veteran has a current diagnosis
of PTSD based on corroborated (combat-related) stressors.
Accordingly, by extending the benefit of the doubt to the
veteran, service connection for PTSD with psychosis is
warranted.
The Board adds in this regard that the diagnosis of
schizophrenia was not manifest in service or within one year
thereafter. Rather, the earliest medical evidence confirming
this disorder is a private treatment record from January
1974.
In his April 1998 statement, the veteran's VA psychiatrist
noted that "it was the combat trauma and the PTSD" that
precipitated his schizophrenia.
In a June 2003 opinion, however, the psychiatrist, after
reviewing the claims file, questioned the diagnosis of
schizophrenia and reiterated the PTSD diagnosis instead.
This juxtaposition of opinions from the psychiatrist thus
provides some support for the assertion that the veteran's
schizophrenia was caused by service.
By contrast, the VHA doctor who offered the November 2005
opinion reviewed the claims file and determined that, in view
of the fact that there was no suggestion of schizophrenia,
lay or otherwise, this disorder had not as likely as not been
manifested in service or within one year thereafter.
However, there is significant evidence of record supporting
this portion of the veteran's claim in the form the veteran's
own lay statements and those of his brother, as indicated in
VA hearing testimony from April 2000. Neither individual,
however, has been shown to possess the requisite medical
training or credentials needed to render a diagnosis or a
competent opinion as to medical causation. On the other
hand, this lay evidence does constitute competent evidence
about the nature of the veteran's symptoms beginning with his
return from service. See Espiritu v. Derwinski, 2 Vet. App.
492, 494-95 (1992); see also Routen v. Brown, 10 Vet. App.
183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v.
Brown, 9 Vet. App. 195, 201 (1996).
Overall, the Board finds the evidence of record to be in
relative equipoise as to the claim of service connection for
PTSD with psychosis.
To the extent that service connection has been granted in
this case, the Board acknowledges that VA is statutorily
required to resolve the benefit of the doubt in favor of the
veteran when there is an approximate balance of positive and
negative evidence regarding the merits of an outstanding
issue. That doctrine is applicable in this case. See
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A.
§ 5107(b).
ORDER
Service connection for PTSD with psychosis is granted.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs